Decision A402E – Children of Promise Preparatory Academy

LA-RR-1213-E

Decision Date: November 6, 2013

Decision Type: Administrative Appeal

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Perc Vol: 38
Perc Index: 76

Decision Headnotes

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.16000 – Disqualification or Bias of Board Agent

A “fixed anticipatory prejudgment” against a party must be shown to establish bias sufficient for Board agent disqualification. Prejudgment is established through statements or conduct by the Board agent indicating a clear predisposition against a party. Erroneous legal or factual rulings, in themselves, do not indicate bias. PERB Regulation 32155(c) requires that any request that a Board agent disqualify himself or herself be made under oath and specifically set forth all facts supporting it. PERB Regulation 32155(c) does not require the concurrence of the parties to the identity of a replacement Board agent. The Board agent’s statement in the order to show cause, that the academy had failed thus far to provide sufficient evidence to rebut the presumption that the proposed unit was appropriate, did not indicate bias, but rather a candid and appropriate appraisal of the academy’s position.

1306.00000 – REPRESENTATION ISSUES; PROOF OF SUPPORT
1306.01000 – In General; Requirements

EERA section 3544(b) and PERB Regulation 33075 grant PERB sole authority to determine the sufficiency of an employee organization’s proof of support. The process for determining proof of support is confidential. A party may challenge the proof of support on the basis that it was obtained by fraud or coercion, or that the signatures on support documents are not genuine, by filing with the Regional Office, within 20 days after the filing of the representation petition, declarations under penalty of perjury supporting such contentions. PERB will not consider declarations which are not timely filed, absent a showing of good cause for any delay. Proof of support is determined by PERB when a petition is filed and an employer provides a list of employees that comprise the petitioned-for unit. When a dispute arises thereafter as to the composition of the bargaining unit, PERB conducts an investigation to determine unit appropriateness. During this investigative process, which may or may not require an evidentiary hearing, the identity of individual employees within the unit may change over time as employees leave employment and are replaced. However, the initial determination regarding sufficiency of support for the recognition petition, once made, is determinative on the issue of majority support within the petitioned-for unit.

1309.00000 – REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200)
1309.01000 – In General/Definition of Appropriate Unit

The burden of providing sufficient evidence demonstrating that a material issue of fact does exist lies with the party seeking to exclude certain employees from the bargaining unit on the basis that they are managerial, supervisory, or confidential. In cases involving a presumptively appropriate bargaining unit, such as “all classroom teachers,” the burden of proof also lies with the party opposing the unit.

1309.00000 – REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200)
1309.08000 – Classroom Teachers

In cases involving a presumptively appropriate bargaining unit, such as “all classroom teachers,” the burden of proof also lies with the party opposing the unit.

1309.00000 – REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200)
1309.13000 – Supervisors

The burden of providing sufficient evidence demonstrating that a material issue of fact does exist lies with the party seeking to exclude certain employees from the bargaining unit on the basis that they are managerial, supervisory, or confidential.

1311.00000 – REPRESENTATION ISSUES; JUDICIAL REVIEW, REPRESENTATION, DECISIONS
1311.02000 – Procedural Issues

In reviewing whether a Board agent has conducted a proper investigation, the Board generally has looked at whether or not the Board agent abused his or her discretion. Our procedures provide no guarantee or entitlement to an evidentiary hearing in a representation proceeding. Whenever a petition regarding a representation matter is filed with the Board, the Board shall investigate and, where appropriate, conduct a hearing and/or a representation election or take such other action as deemed necessary to decide the questions raised by the petition. (PERB Regulation 33237(a).) PERB Regulation 33300 requires that a Board agent serve a notice of hearing if he or she determines that a hearing is necessary. Board agents routinely use an order to show cause in representation investigations to determine if there are material facts in dispute and whether or not there is sufficient evidence to decide a disputed matter without convening an evidentiary hearing. The order to show cause process balances the interests of the parties by providing an employer the means to demonstrate the existence of a material factual issue, while protecting employee representation rights by assuring that a hearing and the accompanying delay in the exercise of employee representation rights will occur only where a material factual issue exists. A “fixed anticipatory prejudgment” against a party must be shown to establish bias sufficient for Board agent disqualification. Prejudgment is established through statements or conduct by the Board agent indicating a clear predisposition against a party. Erroneous legal or factual rulings, in themselves, do not indicate bias. PERB Regulation 32155(c) requires that any request that a Board agent disqualify himself or herself be made under oath and specifically set forth all facts supporting it. PERB Regulation 32155(c) does not require the concurrence of the parties to the identity of a replacement Board agent. The Board agent’s statement in the order to show cause, that the academy had failed thus far to provide sufficient evidence to rebut the presumption that the proposed unit was appropriate, did not indicate bias but rather a candid and appropriate appraisal of the academy’s position.